Citation Nr: 9907697
Decision Date: 03/23/99 Archive Date: 03/31/99
DOCKET NO. 95-24 859 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to the payment of disability compensation
benefits for alcohol and drug abuse allegedly incurred during
active service.
ATTORNEY FOR THE BOARD
D. Dean
INTRODUCTION
The appellant had active service in the U.S. Marine Corps
from December 1968 to December 1972.
This matter comes to the Board of Veterans' Appeals (Board)
from rating decisions by the Detroit and Phoenix Regional
Offices (RO) of the Department of Veterans Affairs (VA). The
claims file is now within the jurisdiction of the Phoenix RO.
By rating action in November 1994, the Detroit RO denied
claims by the appellant seeking service connection for an
acquired psychiatric disorder, including post-traumatic
stress disorder (PTSD), and VA nonservice-connected
disability pension benefits. The current record does not
indicate that the appellant initiated a timely appeal to the
Board from these determinations. However, the VA Form 21-526
received in May 1995 included, in addition to the
compensation claim which is the subject of the present
appeal, another claim for nonservice-connected pension
benefits. This matter is referred to the attention of the RO
for appropriate further action.
The present appeal has been limited by the Board to the issue
of entitlement to VA disability compensation benefits for
alcohol and drug abuse allegedly incurred in service in
accordance with the appellant's May 1995 claim and his very
specific contentions on substantive appeal (VA Form 9, dated
in July 1995). Should he wish to claim entitlement to
service connection for these disabilities for other purposes,
he should notify the RO and identify the other, ancillary VA
benefits which he seeks. See Barela v. West, 11 Vet. App.
280, 283 (1998).
FINDING OF FACT
The applicable law precludes payment of VA disability
compensation benefits for any disability which is the result
of the claimant's abuse of alcohol or drugs.
CONCLUSION OF LAW
The appellant's present claim seeking VA disability
compensation benefits for alcohol and drug abuse allegedly
incurred in service is legally insufficient. 38 U.S.C.A.
§§ 105, 1110 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant has a documented medical history of alcohol and
drug abuse which, he claims, originated during his military
service. He therefore wants to be paid VA disability
compensation benefits for these disabilities.
For claims filed after October 31, 1990, section 8052 of
Public Law 101-508, 104 Stat. 1388-351 (Nov. 5, 1990),
prohibits the payment of VA disability compensation benefits
for any disability which results from a veteran's abuse of
alcohol or drugs. See 38 U.S.C.A. § 1110. The current claim
by the appellant was received on May 30, 1995. Consequently,
the payment of VA disability compensation benefits for
disability due to either alcohol or drug abuse based on the
current claim is legally prohibited, even assuming arguendo
that the claimed disabilities originated in service. Under
the current law, such substance-abuse disability cannot have
been incurred in line of duty. 38 U.S.C.A. § 105(a).
Disability compensation benefits are only payable for
disabilities incurred in service which are contracted in line
of duty. 38 U.S.C.A. § 1110.
In cases such as this, where the law is dispositive, the
claim should be denied because of the absence of legal merit.
Sabonis v. Brown, 6 Vet.App. 426 (1994).
ORDER
The appeal is denied.
J. F. GOUGH
Member, Board of Veterans' Appeals
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